The opinion of the court was delivered by: Milton I. Shadur, Senior United States District Judge.

MEMORANDUM OPINION AND ORDER

Nissin International Transport USA, Inc. ("Nissin," incorrectly spelled
in the pleading at issue as "Nissen") has moved to dismiss the Third
Party Complaint ("TPC") of Airco International, Inc. ("Airco"), which is
one of two defendants in this Carmack Amendment action brought by Tokio
Marine and Fire Insurance Group, as subrogee of Tanita Corp. of America
("Tanita"). Airco has come back with some shifty moves worthy of Barry
Sanders. But as best as can be made out from Airco's response to Nissin's
motion, the correct course of action now is to grant Nissin's motion
— albeit with leave granted to Airco to replead if its counsel can
do so in the exercise of the objective good faith mandated by Fed. R.
Civ. P. ("Rule") 11.

In the TPC itself, Airco has charged Nissin with having "prepared a
Straight Bill of Lading and acted as the initial receiving carrier for
cargo from Tanita Corp." (TPC ¶ 2), with having "negligently issued
an improper Straight Bill of Lading" (TPC ¶ 4(a)) and with having
"failed to handle the cargo in a manner which would avoid loss and the
risk of loss" (TPC ¶ 4(b)). But when it was then challenged by
Nissin, Airco shifted gears to a contention that "at all relevant times,
Nissin was a freight forwarder (and thus deemed an initial carrier)
subject to liability under the Carmack Amendment" (Airco Mem. 4). That
type of strict liability departure from Airco's original negligence
claims is entirely understandable, given the facts (1) that Airco has
made no effort at all to identify just what was assertedly wrong in the
issuance of a straight bill of lading*fn1 and (2) that it was Airco and
not Nissin that hired J.J. Phoenix Express, Ltd. ("Phoenix") to store the
cargo overnight.*fn2

What we are left with, then, is Airco's altered position that Nissin
bears a kind of strict liability under the Carmack Amendment because it
was a "freight forwarder" within the definition set out in
49 U.S.C. § 13102 (8) (and it was thus deemed to be an "initial
carrier" for Carmack purposes). To that end Airco points to that
statutory definition of "freight forwarder," urging that Nissin indeed
proffers the various services identified in the statute:

(A) assembles and consolidates, or provides for
assembling and consolidating, shipments and performs
or provides for break-bulk and distribution
operations of the shipments;

(B) assumes responsibility for the transportation
from the place of receipt to the place of
destination; and

(C) uses for any part of the transportation a
carrier subject to jurisdiction under this
subtitle.

The term does not include a person using transportation
of an air carrier subject to part A of subtitle VII.

But the difficulty with that contention is that although Nissin is
indeed a licensed freight forwarder (as acknowledged by its R. Mem. 10
n. 8), it was not performing that role in the transaction at issue.
First, as indicated by the bill of lading, which lists "Tanita do Nissin"
as the shipper, Nissin is a distributor for Tanita, which was the reason
that the cargo had been in storage in Nissin's warehouse to begin with.*fn3
It thus did not carry out the subsection (A) assemblage and
consolidation function in any conventional sense of that concept. And as
this Court stated in Independent Mach., Inc. v. Kuchne & Nagel. Inc.,
867 F. Supp. 752, 759 (N.D. Ill. 1994):

Nothing in the litigants' submissions deals with, and
this Court has not located any appellate tribunal's
discussion of, the question whether a company that
provides assemblage and consolidation services "in the
ordinary course of its business" but has not done so
in the transaction at issue — this time doing
nothing more than arranging for the transportation of
a single item — is still subject to the
strictures of the Carmack Amendment as to that item.
That certainly would seem to be a strained reading of
the statute, for it would impose strict liability on
an entity that was not in fact performing freight
forwarding services in the case at issue — a
sort of revivification of the older concept described
in [Chicago. M., St. P. & P. R.R. v.] Acme Fast
Freight [Inc.], 336 U.S. [465,] 484 [(1949)], 69
S.Ct. [692,] 701. Thus K & N's sworn submission ought
logically to be enough to take it out of the ambit of
the Carmack Amendment (accord, Pacific Austral Party,
Ltd. v. Intermodal Express, Inc., No. 88 C 10470, 1990
WL 141010, at *1-2, 1990 U.S. Dist LEXIS 12638, at
*3-*4 (N.D. Ill. Sept. 26)).*fn4

At least as importantly, there is also nothing here to confirm that
Nissin assumed responsibility in the fashion that subsection (B) requires
— a requirement that our Court of Appeals in Chemsource, Inc. v.
Hub Group, Inc., 106 F.3d 1358, 1362 (7th Cir. 1997) has expressly held
to be an essential ingredient of "freight forwarder" status, and hence of
Carmack Amendment liability.*fn5 And that factor alone suffices to
defeat Airco's TPC.

Nissin's motion to dismiss the Airco TPC is granted.*fn6 This Court of
course recognizes that the discussion and analysis here have in part
drawn upon information submitted by Nissin outside of the four corners of
the TPC, while normally a Rule 12(b)(6) motion requires that the
pleading under attack be accepted as gospel. But that has been done only
to facilitate matters, both (1) because there is no reason to believe
that the Nissin assertions are inaccurate and (2) because Airco is
granted leave to file an amended TPC on or before July 17, 2000 —
if, as stated earlier, such a pleading can be drafted based on what Airco
knows of the facts and on what its counsel can assert in good conscience
as the predicate for such a claim.

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